2116436 (Refugee) - [2025] ARTA 2165

2116436 (Refugee) [2025] ARTA 2165 (11 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2116436
Tribunal:General Member R Hampson
Date:11 September 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 15 September 2025 at 1:47pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – LGBTIQ – decision without a hearing – clear and unambiguous request – fears discrimination, harassment and bullying – prevalence of homophobia – suffered psychological difficulties including suicidal ideation – country information indicates improved rights – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 384, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 28 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant applied to the Tribunal on 11 November 2021 for a review of this decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was sent a pre-hearing information form on 31 October 2024. This form includes questions about whether the applicant requires an interpreter if there were to be a hearing, and if they wished for this to be a video hearing, along with a space to add details of their claims for protection. The applicants did not respond to this form.
On 26 June 2025, the applicant was invited to attend a hearing before the Tribunal set down for 16 July 2025. The applicant did not reply to this invitation. On 3 July 2025, the applicant was sent a follow up reminder email regarding the hearing requesting they respond to the invitation.
On 14 July 2025, the applicant’s representative responded to this hearing invitation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2116436 (Refugee)

Details

AGLC: 2116436 (Refugee) [2025] ARTA 2165
Case: [2025] ARTA 2165
Decision Date: 11 September 2025

CaseChat Overview and Summary

The case involves an applicant from Vietnam who applied for a protection visa on the basis of her membership in a particular social group defined by her sexual orientation, specifically identifying as a lesbian. The application was reviewed by the Tribunal, which affirmed the delegate's decision to deny the protection visa. The applicant argued that due to her sexual orientation, she faced discrimination, harassment, and bullying in Vietnam, leading to psychological difficulties including suicidal ideation. She also contended that local authorities would not support her and that she could not relocate within Vietnam due to the prevalence of homophobia. The Tribunal, however, found that while the applicant may face moderate societal discrimination and stigma in Vietnam, this did not meet the threshold for serious harm as various support services are available, including LGBTI friendly spaces in Vietnam's largest cities.

The legal issues before the court were whether the applicant met the criteria for a protection visa under the 'refugee' or 'complementary protection' grounds as defined by Australian immigration law. The Tribunal had to consider if the applicant had a well-founded fear of persecution in Vietnam due to her sexual orientation and if this fear met the threshold for serious harm. Additionally, the Tribunal assessed if the applicant met the criteria for complementary protection, which involves a real risk of significant harm if removed from Australia. The Tribunal found that the applicant's claims did not meet the threshold for serious harm or significant harm, given the availability of support services and the possibility of internal relocation within Vietnam.

In affirming the delegate's decision, the Tribunal found that the applicant's claims were not sufficiently substantiated to meet the criteria for a protection visa. The Tribunal relied on country information indicating that while societal discrimination exists, physical attacks are less common and support services are available in Vietnam's major cities. The Tribunal also noted that the applicant could reasonably relocate within Vietnam. The Tribunal concluded that the applicant's risk of moderate societal discrimination and stigma did not amount to persecution or significant harm. Therefore, the Tribunal upheld the delegate's decision to deny the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is satisfied that the applicants have had an opportunity to present their case and provide all the information, evidence and submissions that they consider important and relevant in support of their application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.BACKGROUNDEvidence before the DepartmentMigration history The delegate notes the applicant’s migration history. The applicant arrived in Australia [in] May 2017 on a visitor visa (ceasing on [date] August 2017) and applied for the protection visa on 24 August 2017 and was granted a bridging visa A. This bridging visa was modified on 30 July 2021 to a bridging visa C and again modified on 2 December 2021 allowing the applicant to work. The applicant completed a biometrics identity assessment on 18 August 2021. Protection visa application According to their protection visa application dated 28 July 2021 the applicant claims to [be an age] year old national of Vietnam. She claims to be of Vietnamese ethnicity and her religion is listed as Buddhism. She claims to have a de facto female partner who is [an age] year old national of Vietnam who is not included in this application. The applicant claims the following in her application to the department:·That she identifies as a lesbian.·At high school in Vietnam, she was bullied by classmates because of her sexuality.·Her family and local community pressured her to have a relationship with men.·Her parents made derogatory remarks about the LGBTQ (sic) community.·She suffered psychological harm and suicidal ideations as a result of the homophobia she experienced. ·Local authorities will not support her as homophobia is prevalent in Vietnamese society.·She could not relocate within Vietnam as homophobia is prevalent within Vietnamese society.·She fears she cannot freely express her sexuality due to the risk of being the subject of homophobic attacks and fears that she will suffer psychological harm. Supporting documents The applicant included a link to a 2020 Guardian newspaper article in her protection visa application about the conditions for LGBTIQ students in Vietnam. Whilst the applicant has stated she was bullied during high school, the applicant is now [an age] year old woman and as such the article has little current relevance to her circumstances as an adult if she were to return to Vietnam in the reasonably foreseeable future. The second article is dated 2016 and from the Times about the conditions for LGBTIQ people in Vietnam. Because of the age of the article, I have given it limited weight in considering its relevance to the applicants life now. The applicant was not offered an interview with the delegate. Summary of the delegate’s decision The delegate has considered the information provided by the applicant in her application, the supporting documents and country information regarding the LGBTIQ community in Vietnam. The delegate noted the DFAT Report for Vietnam states the applicant maybe at moderate risk of societal discrimination and physical attacks are much less common than non-physical harm. Support services and LGBTI friendly spaces exist in Vietnam’s two largest cities. The delegate found the applicant maybe at risk of moderate societal discrimination and stigma but considered that any mental harm that may incur as a result does not meet the threshold for serious harm as various supports are available to the applicant. The delegate found on this basis that they are not satisfied there is a real chance that on return to Vietnam the applicant would suffer persecution for reasons relating to their membership of a particular social groups as defined by their sexual orientation.

Evidence

Evidence Before The Court

The applicant did not provide the tribunal with any evidence or submissions with her application apart from the visa refusal notification and the delegate’s decision record. After the request for a decision to be made without holding a hearing the applicant did not provide the Tribunal with any further material in support of their application. All communications between the applicant and the Tribunal have been outlined in detail in the above paragraphs at 24 to 31 and this is in the main regarding the applicant’s request for the Tribunal to make a decision without holding a hearing and the status of her legal representative which remains unknown at the time of this decision. CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations

Decision

Reasons for decision

The applicant was not offered an interview with the delegate. Summary of the delegate’s decision The delegate has considered the information provided by the applicant in her application, the supporting documents and country information regarding the LGBTIQ community in Vietnam. The delegate noted the DFAT Report for Vietnam states the applicant maybe at moderate risk of societal discrimination and physical attacks are much less common than non-physical harm. Support services and LGBTI friendly spaces exist in Vietnam’s two largest cities. The delegate found the applicant maybe at risk of moderate societal discrimination and stigma but considered that any mental harm that may incur as a result does not meet the threshold for serious harm as various supports are available to the applicant. The delegate found on this basis that they are not satisfied there is a real chance that on return to Vietnam the applicant would suffer persecution for reasons relating to their membership of a particular social groups as defined by their sexual orientation. The delegate then considered if the applicant met the criterion for complementary protection and relied on the same claims to address this as no further claims were advanced. The delegate considered at this point relocation and found it reasonable to consider the applicant could relocate to Hanoi or Ho Chi Minh City as she is a healthy young woman of working age and has previously completed an English language course in [Country 1]. She also states she is in regular contact with her family and they have supported her financially in Australia and thus maybe able to assist her if she were to return to Vietnam and relocate. It is also reasonable to consider the applicant relocating within Vietnam as the law allows Vietnamese citizens to do so when registering for an official lease although there are a sizeable percentage of these internal country migrants who move illegally and cannot access government education and health care according to the delegate’s understanding of the DFAT Report for 2019 on Vietnam. As such the delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act. Evidence before the TribunalPre-hearing submissions The applicant did not provide the tribunal with any evidence or submissions with her application apart from the visa refusal notification and the delegate’s decision record. After the request for a decision to be made without holding a hearing the applicant did not provide the Tribunal with any further material in support of their application. All communications between the applicant and the Tribunal have been outlined in detail in the above paragraphs at 24 to 31 and this is in the main regarding the applicant’s request for the Tribunal to make a decision without holding a hearing and the status of her legal representative which remains unknown at the time of this decision. CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa

Ratio Decidendi

Legal Principle Established

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